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Luck v. Smith

United States District Court, D. Colorado

September 8, 2017

DAVID LUCK, Plaintiff,


          Nina Y. Wang United States Magistrate Judge

         This matter comes before the court on two pending motions:

(1) Defendants Sergeant Smith, CO Brummond, Captain Yates, Captain Martinez, CO Nevins, CO Forestall, Sergeant Corbin, Mental Health Provider Toews, Major Butcher, Lieutenant Grimes, and CO Lopez's (collectively, “Defendants”)[1] Motion for Partial Dismissal of Amended Complaint (Doc # 6) (“Partial Motion to Dismiss”) [#24, filed May 1, 2017]; and
(2) Defendant CO Lopez's Combined Motion to Join CDOC Defendants' Motion for Partial Dismissal of Amended Complaint (Doc #24) and Motion to Dismiss Eight Amendment Claim (the “Lopez Motion to Dismiss”) [#40, filed June 21, 2017].

         The undersigned considers the motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated March 1, 2017 [#10], and the memoranda dated May 8, 2017 [#25] and June 21, 2017 [#42]. This court concludes that oral argument will not materially assist in the resolution of these motions. Accordingly, upon careful review of the motions and associated briefing, the entire case file, and the applicable law, I respectfully RECOMMEND that the Partial Motion to Dismiss be GRANTED and the Lopez Motion to Dismiss be GRANTED.


         Plaintiff David Luck (“Plaintiff” or “Mr. Luck”) is currently incarcerated at the Limon Correctional Facility (“LCF”). [#1 at 2]. Plaintiff alleges that Defendants violated his First, Fourth, Eighth, and Fourteenth Amendment rights by placing him in Unit-2, a unit allegedly hostile towards member of the LBGTQ community, which led to an inmate assaulting Plaintiff for being homosexual. [#6]. Plaintiff alleges that he informed Defendants that his placement in Unit-2 posed serious risks to his safety, because Unit-2 housed many white supremacists that would assault him because of his sexual orientation. See [id. at ¶¶ 1, 3, 5-7, 13-14]. Despite his warnings, Defendants moved Plaintiff to Unit-2, and assigned him to a cell with an associate of white supremacists. [Id. at ¶¶ 6-7].

         Plaintiff continues that he informed Defendants Butcher and Yates that “on returning from recreation I had been approached by an inmate who told me that If [sic] I didn't leave Unit-2 that I would be smashed out ([i.e., ] hurt very badly).” [Id. at ¶¶ 13-14]. Against protocol, Plaintiff was placed in an empty double-cell because he was a member of the LBGTQ community. [Id.]. Then, on or about November 29, 2016, one day after his transfer to Unit-2, an inmate entered Mr. Luck's cell and assaulted him. [Id. at ¶ 15]. Plaintiff alleges that he suffered black eyes, bruises, welts, and a bloody nose because of the assault, and that he now suffers from severe migraines, “random gushing nose bleeds”, aches and pains in his neck, as well as mental and emotional disorders. [Id. at ¶¶ 15-17].

         Following the assault, Plaintiff was transferred to the Restrictive Housing Unit where he stayed for one-day, pending an investigation into the assault. [Id. at ¶ 15]. Plaintiff was then placed back in general population (Unit-3). [Id.]. Plaintiff alleges that, upon moving to Unit-3, he was again assigned to a cell with a white supremacist. [Id. at ¶ 15].

         On or about December 22, 2016, Mr. Luck filed an informal grievance against Defendants, because his “constitutional rights have violated [sic] by malicious intent, and [his] life continues to be placed in danger by the policy breakers who continue to retaliate against me for exercising my rights to liberty without affording me any due process.” [Id.]. Plaintiff then filed a step-one grievance based on his continued placement with white supremacists and “affiliated members of multiple security threat groups” in violation of his Eighth Amendment rights. [Id.]. Defendant Yates denied the informal grievance, because Mr. Luck had not brought “ant [sic] custody issues to the attention of the staff while being assigned to living unit-3.” [Id. at ¶ 16].

         Plaintiff then initiated this action by filing his pro se[2] prisoner complaint on January 19, 2017. [#1]. Pursuant to the Order of the Honorable Gordon P. Gallagher, Plaintiff filed his Amended Complaint on January 20, 2017, the operative complaint in this matter. See [#5; #6].

         Defendants filed the Partial Motion to Dismiss and a Partial Answer on May 1, 2017. See [#23; #24]. Plaintiff filed his Response to the Partial Motion to Dismiss[3] as well as a Response to Defendants' Partial Answer on June 7, 2017. See [#36; #37]. On June 21, 2017, Defendants filed the Lopez Motion to Dismiss. [#40]. Defendants also filed a Reply to the Partial Motion to Dismiss on July 27, 2017. [#49].

         During the June 9, 2017 Status Conference, Plaintiff indicated that he wished to amend and/or clarify his complaint a second time. At the Conference, Defendants acknowledged that their pending motions to dismiss would likely be mooted by a Second Amended Complaint.

         Nevertheless, counsel for Defendants indicated that they had no objection to further amendment, consistent with the additional allegations reflected in Mr. Luck's Response to the collective Defendants' Partial Motion to Dismiss [#37], so long as they retained the right to answer or otherwise respond to a Second Amended Complaint. Thus, this court directed Plaintiff to file a Second Amended Complaint, incorporating all potential claims against Defendants, on or before June 30, 2017. See [#38]. Plaintiff then sought, and received, two extensions of time to file his Second Amended Complaint, which was due on or before August 21, 2017. See [#45; #47; #50; #52]. Plaintiff has not filed his Second Amended Complaint, and has not responded to the Lopez Motion to Dismiss. Given the amount of time that has been afforded to Plaintiff to comply with the court's prior order, this court concludes that a Second Amended Complaint is not forthcoming in a timely fashion, and it is appropriate to move forward with a Recommendation on the pending motions at this time, even without a response from Plaintiff with respect to the Lopez Motion to Dismiss. See D.C.COLO.LCivR 7.1(d).


         I. Rule 12(b)(6)

         Under Rule 12(b)(6) a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall, 935 F.2d at 1110 (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across ...

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